CHARLESTON — Attorneys for Constitution Party U.S. Senate candidate Don Blankenship and West Virginia Secretary of State Mac Warner today will debate whether Blankenship is a sore loser or a victim of party bias.

The West Virginia Supreme Court of Appeals will hear arguments at 10 a.m. regarding Blankenship’s attempt to get on the Nov. 6 ballot.

Chief Justice Margaret Workman appointed 24th District Circuit Judge Darrell Pratt and 19th Judicial Circuit Judge Alan Moats to hear the case, along with Workman, Justice Beth Walker and Acting Justice Paul Farrell. Pratt serves Wayne County. Moats serves Barbour and Taylor counties.

At issue is the State Code 3-5-23, otherwise known at the “Sore Loser” or “Sour Grapes” law. According to the 2018 addition of “Running for Office in West Virginia,” published by the Secretary of State, “Candidates affiliated with a recognized political party who run for election in a primary election and who lose the nomination cannot change her or his voter registration to a minor party organization/unaffiliated candidate to take advantage of the later filing deadlines and have their name on the subsequent general election ballot.”

“Sore Loser” laws are not rare. Only four states — Connecticut, Iowa, New York and Vermont — have no “Sore Loser” laws on their books. West Virginia’s “Sore Loser” law has been on the books, in one form or another, for almost 100 years.

The first version of West Virginia’s “Sore Loser” law was enacted by the Legislature in 1919. Over the last 20 years, the law has been amended six times, most recently March 6, 2018.

The language of the law mostly stayed unchanged: “Groups of citizens having no party organization may nominate candidates for public office otherwise than by conventions or primary elections.”

The code section received its first major update in 2009 by an amendment from Delegate Barbara Fleischauer, D-Monongalia. The amendment added new language: “Groups of citizens having no party organization may nominate candidates who are not already candidates in the primary election for public office otherwise than by conventions or primary elections.”

The “Sore Loser” law remained untouched until 2018 when John Shott, a Republican from Mercer County and chairman of the House Judiciary Committee, introduced an amendment to the law.

House Bill 4434 was co-sponsored by Delegate Roger Hanshaw, R-Clay, and passed out of the House Judiciary Committee on Feb. 12. The Shott amendment added two subsections, including subsection F: “For the purposes of this section, any person who is registered and affiliated with a recognized political party as defined in 3-1-8 of this code may not become a candidate for political office by virtue of the nomination certificate process outlined herein.”

Shott’s amendment didn’t change the original code section as much as it added clarification. HB 4434 passed the House of Delegates Feb. 15, 93-1, with Delegate Mike Pushkin as the lone nay vote.

The Senate Judiciary Committee passed the Shott bill with no objections, and it unanimously passed the Senate on March 6. It completed legislative action on March 7, was signed by Gov. Jim Justice on March 22 and went into effect 90 days from passage on June 5.

Blankenship was one of six candidates in the Republican primary for the Senate. He lost to Attorney General Patrick Morrisey on May 8, who won with 34.9 percent of the vote. Morrisey was followed by U.S. Rep. Evan Jenkins of Cabell County with 29.21 percent and Blankenship with 19.97 percent.

The Constitution Party nominated Blankenship on May 19. He officially switched his voter registration May 21 from Republican Party to Constitution Party. By law Blankenship had to wait 60 days after switching parties before he could file a certificate of candidacy, which was July 20.

The Blankenship campaign used those 60 days to collect signatures to get on the November ballot. Blankenship filed his signatures and his certificate of candidacy on July 25. The Secretary of State rejected his candidacy two days later, citing the “Sore Loser” law.

Blankenship has alluded to a conspiracy between Morrisey and members of the Legislature to pass HB 4434 to keep him off the November ballot, going so far as to write a letter and Freedom of Information Act request for any correspondence between Morrisey and lawmakers.

“You’re…likely aware that the law for determining eligibility for ballot access was changed in the midst of this year’s election cycle,” Blankenship wrote to Senate President Mitch Carmichael and former House Speaker Tim Armstead. “As the official leaders of the Republican-controlled legislature, you surely also know that attempts to change the rules for the conduct of an election during an election cycle are highly suspicious.”

Yet, during the months of February and March while the primary was heating up, Blankenship was thought to have a chance at the Republican nomination. Polling during that period of time either had Blankenship trailing Morrisey or Jenkins, going back and forth. One internal poll cited by The Weekly Standard had Blankenship in the lead the week before the primary.

Shott was unavailable for comment on his amendment.

Blankenship also makes the argument about the Legislature retroactively changing the law. He points to a case out of North Carolina where the legislative body passed a “Sore Loser” law on June 20 and used it to remove already qualified independent candidates from the ballot. A federal judge ruled that the state could not retroactively remove those candidates.

“The West Virginia Legislature didn’t pass their so called ‘sore loser’ law until after I was already a candidate in the Republican primary, and the bill did not become effective until June when I had already begun the process of running as a candidate for the Constitution Party in the fall,” Blankenship said in a statement last week. “The West Virginia Supreme Court should reach the same conclusion as did the North Carolina federal judge, by reversing Secretary of State Mac Warner’s denial of my right to be on the fall ballot.”

Marc Williams, the outside counsel for the Secretary of State, argues since the law was updated in March, went into effect June 5 and Blankenship didn’t file a certificate of candidacy until July 25, and it only affects the general election ballot, that Warner isn’t retroactively applying the law.

“First, because (HB 4434) represents a clarification of prior law, retroactivity principles are not implicated,” Williams said. “Second, (HB 4434) is being applied prospectively not retroactively because it does not attach new legal consequences to completed events. Mr. Blankenship had not yet completed the events necessary for him to qualify as an unrecognized party candidate at the time the amendment became effective and he had prior notice that participating in a primary would thereafter bar him from using the nomination-certificate process.”

This is one of the issues the state Supreme Court will be looking at when hearing Blankenship’s petition today to be placed on the ballot alongside Sen. Joe Manchin, D-W.Va., and Morrisey, the Republican nominee.

A decision will need to be quickly made. Absentee ballots will need to be delivered by Sept. 21 to county clerks who are awaiting the outcome of the case.